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Up in Vapor: Lawmakers Take Up E-Cigarettes in the Workplace

July 22, 2015

Wisconsin law bans smoking tobacco in places of employment and other enclosed areas. However, the current definition of “smoking” does not include using electronic cigarettes (e-cigarettes) or other devices used to inhale vaporized nicotine (personal vaporizers).

Some municipalities, such as the City of Madison, have amended their smoking ordinances to prohibit use of personal vaporizers in places of employment or other enclosed areas. Where not prohibited by local ordinance, some employers nonetheless prohibit these devices out of public health concerns. Others allow them, reasoning that employees who use them can do so without interrupting their work, as opposed to needing to take repeated smoke breaks to use traditional tobacco products.

Currently, there are several competing bills pending before the State Legislature that will affect the status of these devices in workplaces and other enclosed areas, as well as ordinances that municipalities have enacted. However, neither existing law nor any of the new proposals prohibit an employer from banning personal vaporizers.

What is “Vaping”?

Introduced around 2004, “personal vaporizers” are battery-powered devices used to simulate the experience of smoking. These devices come in a variety of shapes and sizes. Some look like traditional cigarettes (“e-cigarettes”), others appear similar to large ball-point pens (“vaping pens”), while still others are industrial, hookah-sized devices. These devices work by heating a liquid solution, known as an e-liquid (“juice”), to atomize it into an aerosol vapor to be inhaled by the user. E-liquids come in different varieties and flavors. Many consist of propylene glycol, glycerin (vegetable oil), nicotine, and flavoring. However, some e-liquids are sold without propylene glycol, favoring, or nicotine. Using these devices is known as “vaping.”

Many users “vape” simply for personal enjoyment. However, e-cigarettes are a popular, although not FDA-approved, method of smoking cessation, as they lack the tar, chemicals, and other carcinogens found in traditional tobacco products. They are also odorless. While there is some evidence that e-cigarettes are safer than traditional tobacco products, there is controversy about their overall safety and the effects of long-term use, as well as second-hand exposure. Some also claim that e-cigarettes act as a “gateway” to encourage teens to smoke traditional tobacco products. Some manufacturers of personal vaporizers allege that many of the safety concerns are exaggerated and publicized by the tobacco industry to try and limit competition for traditional tobacco products.

As e-cigarettes have gained in popularity, some retailers have established “vaping lounges” where users can sample different flavored e-liquids, purchase products and supplies, and enjoy them in an enclosed environment. Some taverns and other establishments permit patrons to vape on their premises.

Current Law

Wisconsin Statute 101.123 currently bans smoking in places of employment and other enclosed areas. The law defines “smoking” to mean “burning or holding, or inhaling or exhaling smoke from, any of the following items containing tobacco: 1. A lighted cigar. 2. A lighted cigarette. 3. A lighted pipe. 4. Any other lighted smoking equipment.” Smoking is banned inside the following locations: The State Capitol; residence halls or dormitories owned or operated by a college or university; child care centers; educational facilities; inpatient health care facilities; theaters; correctional facilities; state institutions; restaurants; taverns; private clubs; retail establishments; common areas of multiple-unit residential properties; lodging establishments; state, county, city, village, or town buildings; and all enclosed places that are places of employment or that are public places. However, § 102.123 does not address using e-cigarettes or other personal vaporizers.

Because personal vaporizers are not currently included in the state smoking ban, some municipalities, including the City of Madison, have amended their local smoking ordinances to include prohibitions on vaping. For instance, Madison Code of Ordinances, Ch. 23—Offenses Against Public Policy—was recently amended to add “electronic delivery devices” to the City’s smoking ban. “Electronic delivery device” is defined as “any product containing or delivering nicotine or any other substance intended for human consumption that may be used by a person to simulate smoking through inhalation of vapor or aerosol from the product. This includes any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, or vape pen, or under any other product name or descriptor.” “Smoking” is now defined to include “the use of an electronic delivery device which creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device.” However, the ordinance exempts “retail electronic delivery device stores” from the ban, provided the establishment allows only “sampling” of products, has an entrance opening directly to the outside, prohibits smoking tobacco products, and does not serve food.

Proposed Legislative Changes

Currently there are several competing bills that have been introduced in the State Legislature that concern vaping and the use of e-cigarettes. To start, 2015 AB 106 requires the Department of Public Instruction (DPI) to develop a model policy regulating the use of electronic smoking devices on school district property. The bill also requires each school board to adopt an electronic smoking policy, which may be the same as the model electronic smoking policy developed by DPI. Under the bill, an “electronic smoking device” is defined as “an electronic device containing or delivering nicotine, or any other substance, that an individual uses to simulate smoking by inhaling vapor or aerosol from the device.” This bill has been referred to the Committee on State Affairs and Government Operations.

Next, 2015 AB 120 amends § 101.123 to specify that the term “smoking,” for purposes of the general prohibition against smoking in indoor locations, includes inhaling or exhaling vapor or a vaporized solution from an electronic device. This is the simplest of all the pending legislation concerning vaping and essentially adds vaping to the scope of the current statewide smoking ban. This bill was approved by the Committee on State Affairs and Government Operations, but has been tabled.

A competing bill, 2015 SB 132 prohibits a person from using a “vapor product” in the following places: The enclosed places and outdoor premises of a child care center, when children who are receiving child care services are present; the enclosed places and outdoor premises of a public or private elementary or secondary school; and the enclosed places of a hospital. “Vapor product” is defined as “a noncombustible product, regardless of shape or size, that contains a cartridge or container of nicotine or flavoring and that employs a heating element, power source, electronic circuit, or other means to produce vapor” and includes “an electronic cigarette, electronic cigar, electronic cigarillo, or electronic pipe.”

However, this proposal also prohibits municipalities from enacting ordinances regulating vapor products, except that they may “restrict or prohibit the use of vapor products in the enclosed places in which it conducts the business of the city, village, town, or county.” This proposal would have the effect of invalidating local ordinances, such as the City of Madison ordinance discussed above, that ban vaping in places other than child care facilities, elementary schools, and hospitals. Finally, this proposal would allow private businesses to ban vaping on their premises.

In short, this proposal bans vaping in certain designated locations and prohibits municipalities from expanding the scope of the ban to other locations while allowing business owners to decide for themselves whether to allow vaping on their premises. This bill has been referred to the Committee on Health and Human Services. A similar bill has been introduced in the State Assembly—2015 AB 170.

There is no indication as to if or when the Legislature will vote on these proposals.

Conclusion

Until the State Legislature votes on these provisions, regulation of e-cigarettes and other personal vaporizers is left to municipalities. However, none of the existing ordinances or proposed legislation concerning vaping prohibits an employer from banning use of these devices in the workplace. Use of such devices does not constitute a “protected activity” under federal law. Thus, where permitted by law, the decision to permit vaping in the workplace is up to the discretion of individual employers.

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